United States v. Thomas Wilson ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1328
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Thomas Wilson, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: September 15, 2005
Filed: October 4, 2005
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Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
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PER CURIAM.
Thomas Wilson appeals his conviction for conspiracy to distribute five
kilograms or more of a mixture or substance containing cocaine, entered after the
district court1 denied Wilson’s initial and amended motions to withdraw his guilty
plea under Federal Rule of Criminal Procedure 11(d). Wilson filed his initial motion
to withdraw, without supporting reasons, under Rule 11(d)(1), which provides: “A
defendant may withdraw a plea of guilty . . . (1) before the court accepts the plea, for
1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.
any reason or no reason.” The district court correctly concluded that Wilson
knowingly and voluntarily waived this right. At his Rule 11 hearing, the district court
explained to Wilson that to remain free until sentencing, he had to give up his
otherwise “unconditional right to withdraw [his] plea,” and Wilson agreed. See
United States v. Stricklin, 342 F.3d 849, 850 (8th Cir. 2003) (affirming conviction
based on waiver of Rule 11 right to withdraw guilty plea).
Wilson then filed an amended motion to withdraw based on new information
that he argued would permit him to impeach two incriminating witness proffers in the
government’s case file. Under Rule 11(d)(2)(B): “A defendant may withdraw a plea
of guilty . . . (2) after the court accepts the plea, but before it imposes sentence if: .
. . (B) the defendant can show a fair and just reason for requesting the withdrawal.”
Wilson did not offer a fair and just reason to withdraw his guilty plea, particularly
where the factual basis recited by the government at the Rule 11 hearing and
acknowledged by Wilson to reflect his participation in the conspiracy, did not include
the disputed proffer testimony. See United States v. Morales, 120 F.3d 744, 748 (8th
Cir. 1997) (“[M]iscalculat[ing] the strength of the government’s case . . . . is not . .
. a ‘fair and just reason’ for withdrawal of a guilty plea . . . .”).2
Accordingly, the judgment is affirmed.
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2
The government’s brief urged that Wilson’s waiver extended to the provisions
of Rule 11(d)(2)(B) but on oral argument did not urge that contention in light of
Morales. We need not decide that issue.
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